The 2nd charge alleged that on the same day, at Room A, Flat 20 on the 1st floor of that building, he unlawfully trafficked in dangerous drugs, including 472.1 grammes of a crystalline solid and 13 grammes of a solid containing 469.2 grammes of ‘Ice’, 1,480.32 grammes of a solid containing 1,143 grammes of ketamine, 387 tablets containing 68.6 grammes of MDMA and 99 tablets containing 0.09 gramme of phenazepam.
According to the Summary of Facts to which he agreed, at about 11.32 pm on 9 September 2020, the accused was intercepted by police as he left a residential building, that is, Fok Cheong Building on King’s Road in Quarry Bay. He was intercepted at the ground-floor lobby of the building.
Upon search from a shopping bag that he was carrying, the police found four plastic bags containing the drugs specified in Charge 1 and also 100 foil packs containing a total of 1,000 tablets of etizolam which is not a dangerous drug. And also two bundles of keys were found on his person.
The police escorted the accused to the subdivided flat at Room A, Flat 20 on the 1st floor of the building. They gained access to the flat by using the keys found on the person of the accused.
Upon search, the police found the drugs specified in Charge 2 as well as a vacuum packaging machine and two sealing machines, five packs of resealable plastic bags, piles and packs of resealable transparent plastic bags, a box of gloves, markers and a notebook; a shoebox and also other containers containing four packs of a total of 1,204 tablets of etizolam which is not a dangerous drug; other apparatus such as shovel, spoons, thermometer, corkscrew and metal chopstick; steaming rack, plastic funnel, digital scales, a jug and also some scissors; a piece of tissue paper with the words written on it, the words of “Big 8”, “Medium 20”, “Small 120”. The accused’s thumbprint was found on a television inside the room.
The total value of the drugs seized in this case amounted to HK$1,153,875.
Inquiries revealed that the landlord of the flat let it to an unknown person, which was not the accused, on 3 September 2020. The CCTV at the building lobby depicted that the accused entering and leaving the building several times between 6 to 9 September 2020, sometimes accompanied by an unknown person.
Upon his arrest, the accused stated under caution that the dangerous drug inside the bag when he was intercepted at the ground-floor lobby, the dangerous drug there belonged to him and he intended to deliver it to others. He also admitted that someone hired him to package the dangerous drugs found at the flat and to deliver them.
Before sentencing, I was provided by the prosecution with a copy of the notebook found in the flat. Apparently, the writings in this notebook are related to dangerous-drug packaging or the number of packets of drugs. It mentioned about small packets, large packets and how many large packets can be converted into how many small packets. Also, a number of figures were written on this notebook.
Because a quantity of etizolam, which is not a dangerous drug, was found when the accused was intercepted and also found in the flat, I also asked for the assistance of the prosecution to provide me with some information about etizolam. I am grateful to the prosecution who has sought the expert advice from Dr Raymond S M Wong of the Prince of Wales Hospital.
According to the report by Dr Wong, etizolam is a short-acting anxiolytic hypnotic drug with a similar pharmaceutical profile to benzodiazepines. It is often referred to as a new or novel psychoactive substance. It can be abused to obtain euphoric effects at presumably high dosages or it can be used in combination with other psychotropic substances. It will result in dependence as well as addiction.
In mitigation, counsel advised me that the accused was... 18 years old. He is now 18 years old. He was born in Hong Kong in June 2004. He was only aged 16 at the time of the offence. As confirmed by the prosecution, he has a clear record. He has received education up to Form 3 level and resided together with his family.
Counsel admitted that his role in the offences is one of packaging and being a delivery worker. Counsel submitted that he is now deeply regretful for the wrong he has done and he committed the offences to earn quick and easy money to help out his parents’ financial burden. Counsel said that he is now pursuing Christianity and also he enrolled in the DSE course, determined to become an accountant in due course.
A number of mitigating letters from his parents, his paternal grandparents, his family friend, two pastors and Father John Wotherspoon were submitted to plead for leniency. Counsel said that the accused had taken an active part in Father Wotherspoon’s anti-drug campaign and urged this court to give him a 3-month discount in sentence.
For sentencing purpose, I accept that the tariff for trafficking in 600 grammes or more of ‘Ice’ is the same as trafficking in that quantity of heroin and that the sentencing guidelines for trafficking in MDMA are the same as that of trafficking in ketamine and ‘Ecstasy’.
Taking into account the facts of this case, the proximity of time and the location, I will sentence the accused on the basis that he was in overall possession of the drugs in the two charges. I will determine the appropriate overall starting point of sentence for the total amount of drugs involved before imposing the sentence for individual charges.
In calculating the appropriate sentence, I also have had regard to the principles enunciated by the Court of Appeal in the cases of HKSAR v Chan Yuk Leong, CACC 318/2013, HKSAR v Islam Majharul, CACC 67/2019, and the approaches set out in the case of HKSAR v Herry Jane Yusuph, CACC 93/2019.
In this case, the total quantity of narcotics involved were 47 grammes of heroin, 469.2 grammes of ‘Ice’, 1,211.6 grammes of ketamine and MDMA, that is, the total quantity of narcotics is 1,727.8 grammes. As for the 99 tablets of 0.09 grammes of phenazepam found in the 2nd charge or in the flat, I have taken into account what was said in the case of HCCC 244/2018. I accept that trafficking in this amount do not have any overall effect on the sentencing of this matter and that I would disregard this quantity in my calculation of the ultimate sentence.
To sentence the accused on the individual approach on the total quantity of narcotics would produce a starting point of 40 years and 4 months’ imprisonment, which would be too high and does not properly reflect the justice of the case. To achieve a reasonable and realistic sentence, I will adopt the combined approach which involves the upward adjustment from the starting point of the base drug. In the present case, ‘Ice’ is the more serious drug in terms of its potency and the sentencing tariff. Therefore, I would use ‘Ice’ as the base drug.
In determining the upward adjustment for the remaining narcotics, I examine the overall starting point by checking it against the absurdity test, the conversion test and the ratio test. Under the absurdity test, the overall starting point would be about 23 years and 6 months. Under the conversion test, the overall starting point based on the ‘Ice’ sentencing guideline is about 20 years and 10 months’ imprisonment. The overall starting point based on the ratio test is about 18 years and 10 months’ imprisonment.
The accused in this case is not merely a courier or storekeeper, as counsel admitted in mitigation that he was also packaging the drugs found in the flat, and the accused also admitted under caution that he packed the dangerous drug at the flat before delivering them.
As one can note from the Summary of Facts to which he admitted, a number of packaging paraphernalia were found in the flat as well. And for sentencing purpose, counsel urged me to ignore the fact that the notebook containing the handwritings were being written by him because there is no such evidence adduced by the prosecution. I accepted counsel’s submission on this matter because there is no evidence to prove that he was the one who made those records.
In respect of the quantity of etizolam found on his person, I mean in the bag he carried and also found in the flat, I will see it as one of the substances he delivered and also one of the substances being stored in the flat. After all, it is not a dangerous drug and should play no part in my computation of the sentence, but it goes into the circumstances of the case, the background of the case.
I have taken into account the facts admitted and all the circumstances and conclude that the accused was also involved in the packaging and dissemination of the drugs in addition to acting as a courier and providing a place or being a storekeeper, that is, in addition to acting as a courier and acting as a storekeeper. Taking into account his role and culpability, I take 20 years as the overall starting point after trial.
In this case, several different types of drugs were seized, even though separately packed and not in a prepared mixture. I have had regard to the two possible aggravating features, namely, firstly, the ability of the trafficker to cater to a wider market and, secondly, the effect on users of combination of the dangerous drugs. And on this basis, I further enhance the starting point by 3 months. Therefore, the notional starting point after trial is one of 20 years and 3 months’ imprisonment.
The accused pleaded guilty at the earliest opportunity and he is entitled to the full one-third discount of his sentence. As for his involvement in Father Wotherspoon’s anti-drug campaign, I have taken into account what the Court of Appeal said in the case of Kilima Abbas [2018] 5 HKLRD 88. I consider that the fact whether he has made a meaningful contribution to Father Wotherspoon’s campaign is a matter to be left for the Executive to address. Therefore, I decline to give him any further discount in respect of this matter. There being no other mitigating factor, one-third is the extent of discount he is entitled to.
The ultimate overall sentence is one of 13 years and 6 months’ imprisonment. To achieve this ultimate sentence and taking into account the principle of totality, I now sentence him to 5 years’ imprisonment for Charge 1. For Charge 2, I impose a sentence of 12 years’ imprisonment. 18 months of the sentence in Charge 1 is to run consecutively to the sentence in Charge 2.
So the total sentence is one of 13½ years’ imprisonment,
yes, and this is the sentence I impose.